Citation Nr: 0006532
Decision Date: 03/10/00 Archive Date: 03/17/00
DOCKET NO. 98-14 570 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to service connection for a temporomandibular
joint disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and her friend
ATTORNEY FOR THE BOARD
William D. Teveri, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1983 to December
1994. Her DD 214 also indicates eight years, 1 month, and 15
days of prior active duty service.
This appeal arises from a February 1998 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Louis, Missouri. That decision also granted service
connection for migraine headaches, assigning a 10 percent
rating, effective December 15, 1997. A timely notice of
disagreement (NOD) as to the assigned rating was filed in
April 1998. In that NOD, which was prepared and filed by the
veteran's representative, "the next higher compensable
evaluation" was requested. In an August 1998 statement,
attached to her VA Form 9 substantive appeal, the veteran
asked "that the next level of compensation be granted." In
March 1999, during the pendency of this appeal, a Hearing
Officer decision increased the rating for this disability to
30 percent disabling. During her March 1999 personal hearing
the veteran stated "I think the 30 percent would be the most
appropriate ... ." A substantive appeal may be withdrawn in
writing at any time before the Board promulgates a decision.
38 C.F.R. §§ 20.202, 20.204(b) (1999). Withdrawal may be
made by the appellant or by his or her authorized
representative, except that a representative may not withdraw
a substantive appeal filed by the appellant personally
without the express written consent of the appellant. 38
C.F.R. § 20.204(c). Accordingly, the Board finds the
appellant has withdrawn her appeal of the issue of a rating
in excess of 30 percent for migraine headaches, and, hence,
there remain no allegations of errors of fact or law for
appellate consideration.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. There is no medical evidence of any currently diagnosed
temporomandibular joint disorder.
3. There is no medical evidence of a nexus between any
temporomandibular joint disorder and an inservice injury or
disease or any other incident of service.
CONCLUSION OF LAW
The veteran's claim for service connection for a
temporomandibular joint disorder is not well grounded.
38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a)
(1999). In addition, certain chronic diseases may be
presumed to have been incurred during service if they become
manifest to a compensable degree within an applicable period
after separation from active duty. 38 U.S.C.A. §§ 1101,
1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If a condition
noted during service is not shown to be chronic, then
generally a showing of continuity of symptoms after service
is required for service connection. 38 C.F.R. § 3.303(b).
No conditions other than those listed in § 3.309(a) can be
considered chronic for purposes of presumptive service
connection. 38 C.F.R. § 3.307(a).
The United States Court of Appeals for Veterans Claims
(formerly the United States Court of Veterans Appeals)
(Court) has established rules for the determination of a well
grounded claim based upon the chronicity and continuity of
symptomatology provisions of 38 C.F.R. § 3.303(b). The Court
has ruled that the chronicity provision of § 3.303(b) is
applicable where evidence, regardless of its date, shows that
a veteran had a chronic condition in service or during an
applicable presumption period and still has such condition.
Such evidence must be medical unless it relates to a
condition as to which, under the Court's case law, lay
observation is competent. If the chronicity provision is not
applicable, a claim may still be well grounded or reopened on
the basis of § 3.303(b) if the condition is observed during
service or any applicable presumption period, continuity of
symptomatology is demonstrated thereafter, and competent
evidence relates the present condition to that
symptomatology. See Savage v. Gober, 10 Vet. App. 488, 493
(1997). The rules concerning chronicity and continuity of
symptomatology, however, still require "medical expertise"
to relate the veteran's present disability to his or her
post-service symptoms. Savage, 10 Vet. App. at 497-98.
The initial question which must be answered in this case is
whether the veteran has presented a well grounded claim for
service connection. In this regard, the veteran has "the
burden of submitting evidence sufficient to justify a belief
by a fair and impartial individual that the claim is well
grounded," that is, the claim must be plausible and capable
of substantiation. See 38 U.S.C.A. § 5107(a); Tirpak v.
Derwinski, 2 Vet. App. 609, 611 (1992).
In order for a claim to be well grounded, there must be
competent evidence of current disability (established by
medical diagnosis); of incurrence or aggravation of a disease
or injury in service (established by lay or medical
evidence); and of a nexus between the inservice injury or
disease and the current disability (established by medical
evidence). See generally Epps v. Gober, 126 F.3d 1464 (Fed.
Cir. 1997), cert. denied sub nom. Epps v. West, 118 S.Ct.
2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995),
aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Medical
evidence is required to prove the existence of a current
disability and to fulfill the nexus requirement. Lay or
medical evidence, as appropriate, may be used to substantiate
service incurrence. See Layno v. Brown, 6 Vet. App. 465, 469
(1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).
The veteran's service medical records (SMR's) indicate that
in August 1991 she was treated by an enameloplasty for a
chipped incisal edge on tooth #13. A note to that report
indicates the veteran should be evaluated for a splint at her
next duty station. A September 1992 report indicates the
veteran complained of right post masseteric pain and slight
mobility of tooth #3, occasionally, and maxillary left
alternatively. The report also indicates the veteran
reported a past history of "trauma max[illary] ant" at 16
years old, due to a motor vehicle accident, with a maxillary
fracture. She also reported she fell from a bunk bed sixteen
years before, with subsequent concussion and residual "dizzy
spells" which occurred once or twice per year, and
"positional difficulty." She reported the last significant
episode was three years before, "lasting days," and mild
ones since, "5 or 6 per year." She reported no other
neurologic symptoms. She also reported sinus headaches
(ethmoids) every two months. She reported right suboccipital
shooting pains occasionally. She reported no mandible
locking, but many "clicks" in multiple joints. She
reported she noticed tooth "looseness" in the morning. A
temporomandibular joint (TMJ) X-ray was noted to have been
exposed while the mandible was open, just after the point of
the click. It was noted to reveal subluxated condyles.
Written home care instructions were given to use moist heat
with yawn exercises.
A subsequent September 1992 report, which subject was noted
to be temporomandibular joint dysfunction (TMD), and an
examination of tooth #3, indicates the veteran reported
improving symptoms, with one headache/neckache the day
before, but that this may have been due to her posture while
sleeping, and nightmares, relating to stress in the
Philippine Islands during the volcano eruption there. She
reported she still had problems yawning. It was noted that
the veteran declined a splint at that time. Again, home care
instructions were given as to yawn exercises. An October
1992 report, noted to be for TMD, and examination of tooth
#3, indicates the veteran reported slight improvement. A
maxillary alignment impression was made for fabrication of a
maxillary splint matrix, and the veteran was scheduled for
fabrication of that splint. A subsequent October 1992 report
indicates the veteran was informed of the possibility of
palatal irritation, resin wash and saline in slight mandible
protrusion position (jaw relation) using lubricant and water
coolant. She was scheduled for installation of a hard
maxillary splint. A subsequent October 1992 TMD tooth #3
report indicates the veteran reported slightly improving
symptoms. A hard maxillary splint, with canine and anterior
guidance built in, was adjusted and delivered. The palatal
tissues were noted to be slightly irritated. A subsequent
October 1992 report indicated the veteran reported wearing
the splint as instructed. She reported increased TMD
symptoms due to trying to avoid ongoing maxillary left molar
area (lingual) irritation. The recommendation was for
medicinal mouthwashes and pain medication. Another
subsequent October 1992 report indicates the veteran reported
palatal irritation bilaterally. An examination of tooth #3
revealed bilateral erythema, being 1 x 1.5 centimeter
patches. Another subsequent October 1992 report indicates
that the "TMD patient" reported a soothing of the palatal
irritation, and no TMD symptoms until the night before, when
she reported she "bruxed" due to a nightmare after watching
a horror movie, and not wearing her splint. The veteran
agreed to avoid parafunctional activities. She reported a
general improvement in her symptoms.
A November 1992 report indicates the veteran reported one
night of sleep disturbances and one day of facial pain
afterwards. She reported wearing her splint as prescribed.
A subsequent November 1992 report indicates the veteran
reported her splint was fitting fine, except for slight
tightness on her canines. She indicated she did not wish to
have the splint adjusted at that time. She reported no TMD
symptoms, and no palpation pain. An August 1994 report
indicates the veteran reported for sick call with complaints
of TMD. She reported no current pain. She reported the pain
had been right maxillary between teeth #2 and #3. The
dentist indicated the area appeared swollen. The impression
was gingival abscesses between those teeth. A subsequent
August 1994 report indicates an examination revealed a
localized periodontal abscess between teeth #2 and #3. It
also noted that X-rays had revealed bone loss between teeth
#2 and #3. The dentist recommended performing a conservative
flap procedure to surgically debride the area and reduce
probing depths. The veteran was noted to accept the
recommendation.
Initially, the Board notes the flap procedure was due to
gingival abscesses and not the veteran's TMD problems, that
no service dental records reflect any indications of TMD
subsequent to August 1994, and that the veteran's bone loss
was not attributed to any TMD problems.
No medical evidence has been submitted showing that any
disease subject to presumptive service connection was
manifested to a compensable (10 percent) degree within one
year of the veteran's discharge from service. See 38 C.F.R.
§ 3.309(a).
During a February 1995 VA skin examination the veteran
reported that a brawny discoloration on both
temporomandibular areas had been present for the past fifteen
years. The pertinent diagnosis was brawny discoloration
bilateral temporomandibular area, etiology undetermined.
A May 1997 VA dental report indicates the veteran's medical
history had been reviewed, and that, on clinical examination
and by radiograph severe vertical bone loss on tooth "M
#15" had been found. The report indicated this area was
difficult to clean and maintain. The report also noted that
tooth #2 had been previously extracted, due to the "same
problem." The veteran was advised to have tooth extracted
if regular periodontal maintenance is not reasonably expected
after she gets "off" vocational rehabilitation status. The
report indicates the veteran was "not prepared for [tooth
extraction]" at that time.
A December 1997 dental report indicates the veteran was
referred for extraction of tooth #15, due to periodontal
involvement. That tooth was extracted. The diagnosis was
chronic periodontitis.
In a December 1997 statement the veteran reported no
treatment for any TMD since her discharge from active duty,
but that, while in VA vocational rehabilitation, she
complained of pain associated with her "back teeth." She
reported she had two teeth removed from the upper jaw at the
Kansas City VA Medical Center.
A January 1998 VA dental report indicates the veteran
clinched and bruxed her teeth, and a mouth guard was
recommended, but neither TMJ or TMD were diagnosed.
A February 1998 VA treatment report contains a diagnosis of
an oral ulcer, which was noted to suggest Bechet's disease,
but indicated the "picture" was incomplete for that entity.
It was also noted that the arthralgias would "fit" with
that diagnosis.
Another February 1998 VA dental treatment report indicated
the veteran remained stable, but complained of gum tenderness
in areas where teeth were missing, and that her posterior
teeth had drifted forward. The report indicated that the
importance of keeping these areas clean was reinforced. This
was noted to be a periodic oral evaluation, and the diagnosis
was dental disorder, not elsewhere classified.
In a statement attached to her August 1998 VA Form 9
substantive appeal, the veteran indicated that she had been
seen at the VA dental clinic in Kansas City from March 1996
through June 1997; that she had two teeth extracted during
that time, due to bone loss and complaints of pain; that she
had been advised to have a bite guard made; and that,
although she had not been formally diagnosed with TMJ after
her military service, the post-service symptom complaints
were similar to those which resulted in a diagnosis of TMJ
during active duty service, and that, therefore, she believed
this supported her claim for TMJ.
During the veteran's March 1999 personal hearing she
testified that, as to her claim for TMJ, she was first seen
in service for this problem in September 1992; that she was
seen until 1994; that she was told she had TMJ at that time;
that she "didn't go to the dentist too much after that";
that she later had gum disease and lost a tooth; that she
couldn't afford dental treatment after service; that she
still has gum pain and loosening teeth; that the pain and
tooth loosening "comes and goes," sometimes not occurring
for six months or more; that she had never been told what the
etiology of the problem was; that she had never been told by
a health care professional that any bone loss or tooth loss
was due to TMJ; and that she had a head injury in January
1976, when she fell from a bunk bed.
The Board acknowledges the veteran's contentions that she
currently has TMJ, and that it produces the same symptoms as
when TMJ was diagnosed during her active duty service. The
Board notes, however, that the veteran, as a lay person, is
not qualified to offer opinions regarding the diagnosis and
etiology of TMJ; such determinations require specialized
knowledge or training, and, therefore, cannot be made by a
lay person. See Jones v. Brown, 7 Vet. App. 134, 137 (1994);
Layno v. Brown, 6 Vet. App. 465, 470 (1994); Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). See also Heuer v.
Brown, 7 Vet. App. 379, 384 (1995), citing Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993), in which the Court held
that a veteran does not meet his or her burden of presenting
evidence of a well grounded claim where the determinative
issue involves medical causation and the veteran presents
only lay testimony by persons not competent to offer medical
opinions. Where, as here, the determinative issue involves
medical diagnosis and etiology, competent medical evidence
that the claim is plausible is required in order for the
claim to be well grounded. LeShore v. Brown, 8 Vet.
App. 406, 408 (1995).
As noted above, a well grounded claim requires medical
evidence of a current disability, and medical evidence of a
nexus, or relationship, between that disability and an
inservice injury or disease. See Epps, supra. The only two
dental diagnoses of record since the veteran's discharge from
active duty are chronic periodontitis and brawny
discoloration bilateral temporomandibular area, etiology
undetermined. Without a current diagnosis of either TMJ or
TMD of record, there is obviously no nexus opinion of record.
As noted above, a well grounded claim for service connection
must be supported by evidence, not merely allegations. See
Tirpak, supra. In the absence of both a current diagnosis of
TMJ or TMD and of a medical nexus opinion, the veteran's
claim for service connection for a temporomandibular joint
disorder must be denied as not well grounded. See Epps,
supra.
The Board is aware of no circumstances in this matter that
would put VA on notice that relevant evidence may exist, or
could be obtained, that, if true, would make the veteran's
service connection claim "plausible." See generally
McKnight v. Gober, 131 F.3rd 1483, 1484-85 (Fed. Cir. 1997);
Robinette v. Brown, 8 Vet. App. 69, 77-78 (1996).
ORDER
Service connection for a temporomandibular joint disorder is
denied.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals